San Diego, Calif. – Many jurisdictions have been sluggish to adopt “red flag” laws, but San Diego’s program demonstrates how advocates think gun violence restraining orders might avoid disaster.
That July morning, Jeff Brooker arrived at the San Diego City Attorney’s Office to find four further requests for gun violence restraining orders on his desk.
Officers arrived to a minor automobile accident at a shopping mall, where the driver, who was armed with a replica firearm, was speaking incoherently and threatening to kill “one-percenters” and a public official. During a dispute outside a family member’s home, another man drew a revolver from his waistband and pointed it at someone’s head in front of multiple witnesses.
Brooker supervises the department’s eight-member gun violence restraining order team. The amount of new cases was not extraordinary. In a typical week, they evaluate 30 referrals from local police and review scenarios in which investigators believe a resident is at risk of committing gun violence.
About one-third of the time, the office will petition a judge to temporarily seize a person’s firearms under a six-year-old California statute that was among the country’s first “red flag” laws. This is done when the individual poses a clear danger to themselves or others and is not prohibited from possessing weapons for another reason.
Since the end of 2017, when San Diego City Attorney Mara Elliott launched the pioneering unit, Brooker’s team has successfully filed a gun violence restraining order more than 1,250 times, resulting in the seizure of nearly 1,600 firearms from 865 individuals as of April — more than any other agency in the state. A third of the weapons, the most of which are handguns, have been restored to their owners.
“Do you believe this individual should possess a firearm? The best test is your own common sense,” said Brooker, using a cable television thought experiment to show how he attempts to depoliticize the highly charged red flag rule. How might MSNBC host Rachel Maddow and Fox News anchor Sean Hannity handle a case if it hypothetically becomes a significant news story?
Brooker stated, “If this is a case they can agree on, this is the type of lawsuit we will file.”
After a mass shooting at an elementary school in Uvalde, Texas, which resulted in the deaths of 19 pupils and two teachers, proponents for these red flag legislation redoubled their efforts to pass them this summer.
Congress responded by enacting, with bipartisan backing, unusual gun safety legislation that may offer hundreds of millions of dollars to assist states in adopting or expanding their own red flag laws. Nineteen states and the District of Columbia have already enacted legislation, however a recent research by the Associated Press revealed that many of these statutes are rarely implemented.
San Diego has been a model in California, which placed eighth in number of cases per capita.
With many jurisdictions still reluctant to implement gun violence restraining orders, the Governor’s Office of Emergency Services stated in July that it will pay $1 million to the San Diego City Attorney’s Office to expand its training efforts among other law enforcement agencies.
“We must collaborate to ensure that existing gun safety and red flag laws are utilized to safeguard our community. Last month, Attorney General Rob Bonta stated during a press appearance alongside Elliott that they are underutilized. “Others should follow San Diego’s example – be aggressive and utilize the available tools.”
A pioneering initiative
While California law permits police, close family members, housemates, employers, co-workers, and school officials to seek a gun violence restraining order for someone they fear poses a threat to themselves or others, the vast majority of cases are launched by law enforcement. Assembly Bill 2870, which is currently pending before Governor Gavin Newsom, would expand the list of qualified petitioners to include more family members including others who are dating or share children with the gun owner.
A judge may instantly order a person to surrender their firearms and declare them ineligible to purchase firearms and ammunition for three weeks, or, following a hearing, may prolong the ban to as long as five years. The individual may then submit a petition once a year to have the injunction lifted and their firearms returned.
Under Elliott, San Diego has invested more than anywhere else in California in its red flag program, with the city attorney’s office and the police department working closely together to speed the process for obtaining an order. Three attorneys, a paralegal, a legal secretary, a police officer, and two retired police officers prepare cases for examination as part-time investigators on Brooker’s team.
Brooker stated that petitions for orders arrive around the clock. While police can obtain an emergency order from a judge to seize a person’s weapons for 21 days, it is up to the city attorney’s office to decide whether to pursue a year-long or longer seizure. Every morning, Brooker’s team is in court filing papers and holding hearings for new cases or expiring orders.
Brooker arrived to their fifth-floor office overlooking Civic Center Plaza in downtown San Diego after the investigators had already been present for several hours. Several additional petitions had been submitted overnight, and the corresponding informational packs were prepared.
The corner office of Brooker is filled with “Star Wars” memorabilia, such as a signed poster of Princess Leia and an Obi-Wan Kenobi T-shirt that shares a coat rack with his jackets and ties. On his bookcase, a book about the original Star Wars trilogy sits adjacent to a collection of Shakespeare’s works and the Constitution.
Brooker stated that his team’s objective is just to remove firearms from a situation until it can be made safe, therefore they occasionally engage with such individual on a plan to return their firearms rather than pursuing an extension of the order.
This is more typical when the gun violence restraining order can provide a person with time to calm down and stabilize after a suicide threat. If drug or alcohol misuse is present, or if a suspect appears to have more severe mental issues, Brooker said his team will likely request a longer seizure of the suspect’s firearms.
He stated, “They are not all evil people or criminals.” Some of them are merely experiencing a period of crisis.
Adopting a cautious stance
The most prevalent forms of cases are determined by global events. During the coronavirus epidemic, spousal violence, suicide, child abuse, protest threats, and social media threats all increased, according to Brooker. During the holidays, there are increased incidents of domestic violence and suicide, and following a mass shooting, there are a large number of potential copycats.
Brooker stated, “If there was ever a period when I questioned my life and job, it was during that month after Uvalde.” Every day, schools went into lockdown, commencements are threatened, and his squad is out every night executing search warrants for guns that a judge has ordered to be removed.
Brooker stated that he is careful when initiating lawsuits because he fears retribution from gun rights activists. The retired police officers analyze each petition to ensure that the possible threat is not based on unverified information or a long history of violence.
“I know they are waiting for us to file one terrible case so they can pounce,” he stated. This case will come back to bite us.
Although the red flag law has not met with widespread opposition in California, it remains highly controversial among gun rights advocates. Critics contend that the law breaches the right to due process by permitting a judge to order the removal of a person’s firearms before they’ve had a chance to defend themselves and by requiring that person to go to court to get their firearms back. Following a summer Supreme Court decision that enhanced gun rights, groups throughout the nation are contemplating new legal challenges to red flag regulations that have been routinely supported in court.
Sam Paredes, executive director of the advocacy organization Gun Owners of California, referred to the measure as a “insincere” attempt to address gun violence without addressing mental health concerns or other dangerous conditions.
“We have no problem dealing with persons who are identified as a threat to themselves or others. “We have a mechanism in place to handle this in its entirety,” Paredes added. Gun violence restraining orders and red flag regulations are nothing more than a political football.
Considered by the judge
At 9 a.m., when Brooker and a colleague arrived at the county courthouse, the bailiff ushered them into the courtroom and informed Brooker that none of his respondents had yet checked in.
Today, I have two dismissals and one continuation, Brooker responded.
While Superior Court Judge Adelaida Lopez administered the oath to the parties and witnesses, Brooker was on his phone, drafting notes about how he expected the cases to progress and re-reading the case files to be prepared for inquiries. He checked his email and stole a peep at a few photos from his son, who had recently relocated to Switzerland for college, in the interim.
The cases of Brooker were among the first to be heard. In one incident, a man informed police he intended to drink himself to death. Officers wished to acquire a gun violence restraining order to prevent the man from legally purchasing a handgun in a time of desperation, despite the fact that he was not in possession of any firearms.
Brooker requested a further postponement to provide his office additional time to serve the defendant with notice of the hearing.
“We first tried him with soft contacts for officer safety and other apparent reasons, so I can guarantee you there was due diligence,” Brooker said.
Lopez received a further 21-day extension. Then, Brooker moved on to his next case, where the defendant had also been placed under a mental health hold, preventing him from acquiring firearms and rendering a gun violence restraining order superfluous.
“I believe we can cancel the event. “Will this result in termination?” Lopez stated. “Item 32 is withdrawn. This protective order has been revoked.”
“Very good. “Thank you, Your Honor,” said Brooker. The entire procedure was completed in less than five minutes.
Not usually is it so quick. Brooker stated that his team once obtained an arrest warrant for a former IT employee who was suspected of scouting the hospital where he was fired, sparking suspicions that he was preparing a mass massacre. The man retained high-powered attorneys, and the judge heard five days of witness testimony before ultimately granting the weapons seizure order.
A coworker alerted Brooker upon her return to the office following court that she had gotten a call from the nearby Carlsbad Police Department. A guy was issued with a gun violence restraining order at a traffic stop, which is regarded safer than at home. Officers had detained the man because he refused to give them the combination to the gun safe in his car.
Brooker instructed his colleague to provide the officers a search warrant template. When he checked back in with the Carlsbad police later — each text message to his phone arriving with the sound of Darth Vader breathing — he heard that the officers had ultimately kept the safe and released the man while they awaited the search warrant’s clearance to open it.
Brooker stated, “They are actually treating him well by releasing him rather than keeping him for hours or even transporting him to jail and booking him.” “The sole objective of this is to obtain the gun. We have no intention of putting anyone in a worse position.”
Slow to adopt red flag legislation
According to data from the Department of Justice, nearly a third of all gun violence restraining orders issued in California last year — 435 out of 1,384 — were issued in San Diego County. Los Angeles County, with three times as many inhabitants, had only 54. Dozens more counties reported no directives whatsoever.
The sluggish and largely regional adoption of California’s red flag law has perplexed and irritated gun safety activists, who cite to data demonstrating the approach’s effectiveness in avoiding suicides and mass shootings. Some jurisdictions that established red flag laws more recently, including Florida, which moved in response to the 2018 Parkland school shooting, swiftly overtook California in the usage of the directives.
“I’m baffled,” Brooker added, attributing the situation to a lack of resources and motivation.
“We live in a reactive society and age,” he stated. “Until they are forced to do it, they will not do it. And generally they must since there was a gunshot and everyone is focused on it.”
But as gun violence restraining order marketing and pressure to use the statute have increased, Brooker and his staff have become a statewide resource. Since January, more than 100 people from outside San Diego County have reached out to him for assistance, according to Brooker, who receives calls from agencies and departments such as customer service lines.
He had contacted with the Naval Criminal Investigative Service that morning about submitting an order for a San Diego-based sailor hospitalized for suicidal and homicidal intentions. The NCIS sought to seize the man’s firearms after he was released from the hospital, but it lacked the authority to do so off base.
In addition to frequently conducting training for law enforcement departments around the state, Brooker’s team receives an influx of requests after every mass incident.
Brooker stated that many policemen feel intimidated at first. They believe they lack the time to follow all of the stages, or they get lost in the weeds the first few times, which causes them to lose respect for the law. Therefore, he feels that a dedicated team like his, which can collaborate daily with the local police, is essential for success.
There are officers who wish to arrest them. There are cops who attempt to do them. But without backing from the command and sufficient resources, it will fail,” Brooker added. “I wish they would stop sending me so many weeks.”
Yet even as an advocate for California’s red flag law, Brooker is concerned that lawmakers are expanding it in unproductive ways with measures like the one currently on Newsom’s desk.
He believes that it is too risky for anyone other than police enforcement to remove a person’s firearms. But a gun violence restraining order that a judge grants to a family member or other civil petitioner is served by a process server, giving the recipient 24 to 48 hours to turn in their weapons — and Brooker fears that the recipient will retaliate against the petitioner, causing the exact type of shooting that the red flag law is intended to prevent.
Simply call the cops, he said. I am thankful that neither a school nor a workplace has filed one of these claims.
Communicating the word
The day before, Brooker and his coworkers held a training session for the police department in National City, which is nearby.
The head of the department’s training division, Sgt. Darren Pierson, believed that if he could convince one or two officers to use gun violence restraining orders, others would realize that it was not that tough. He mandated the training for all supervisors.
Pierson stated, “A culture of encouragement is required.”
About 30 attendees, some from different local law enforcement agencies, sat at folding tables in a huge conference room at the Martin Luther King Jr. Community Center, hoping the instructor would not call on them.
The training began with a body camera video of a 2017 incident in which an officer was shot while breaking into the residence of a man with mental health difficulties. Brooker pondered aloud whether the incident could have been prevented if they had been able to seize the man’s firearms with a gun violence restraining order. At the time, the city’s program had not yet been implemented.
“Could it have potentially prevented something like this?” Brooker asked the room. Then, over the course of many hours, he described dozens of situations in which his team had discovered the California red flag statute to be effective through trial and error.
- A man in the middle of a contentious divorce who, after a confrontation with his estranged wife, threatened to buy a gun and “shoot the bitch” if prosecutors didn’t file domestic violence charges against her. “He’s probably venting, but what if he’s not?” Brooker said.
- A man who posted videos on “dark web” channels practicing shooting tactics and quick reloads from different rooms at the same hotel in downtown San Diego, sparking concerns from the FBI that he was planning a mass shooting. “Looking at that video, did anybody see a crime? Especially because he’s got registered guns,” Brooker said. “Just another way a GVRO can be applied to a case where you may not have another way in, because you do have firearms and you do have danger.”
- A man who regularly dressed as Gandalf, the wizard from “The Lord of the Rings,” and then entered traffic, putting down a staff and declaring, “You shall not pass,” prompting some drivers to beat him up in road rage incidents. Knowing that he owned firearms, police sought a gun violence restraining order so that the man would not be able to potentially fire back.
Brooker argues that the effectiveness of the approach favored by the San Diego City Attorney’s Office is self-evident: 1,600 guns taken off the streets in risky situations where people were “charging hard down” the path to violence but had not necessarily committed a crime.
“Now I see all the cases where the cops’ hands are untied,” he said. “We see fewer cases in the news because of us.”